Kurian Mathew v. District Educational Officer, Kollam and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 9TH DAY OF APRIL 2012/20TH CHAITHRA 1934 WP(C).No. 21054 of 2006 (F) --------------------------- PETITIONER(S): ------------KURIAN MATHEW, S/O. MATHEW, PRINCIPAL (RETIRED FROM ST.JOSEPH'S HIGHER SECONDARY SCHOOL), PADAPPAKARA, KOLLAM DISTRICT RESIDING AT PULIMOOTTIL VEEDU, KUNDARA P.O.,KOLLAM BY ADV. SRI.M.V.THAMBAN RESPONDENT(S): -------------1. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM. 2. THE DEPUTY DIRECTOR (EDUCATION), KOLLAM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVT. DEPARTMENT OF FINANCE, GOVT. SECRETARIAT THIRUVANANTHAPURAM. 4. SECRETARY TO THE GOVT. DEPT. OF GENERAL EDUCATION, GOVT.SECRETARIAT THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER (FINANCE) SHRI RENNY STEPHEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: |WPC 21054/2006|WPC 21054/2006|APPENDIX|| |---|---|---|---| |PETITIONER'S EXTS:|||| |EXT.P1|TRUE COPY OF LETTER DT.28/3/94 FROM DEO||| |EXT.P2|TRUE COPY OF OBJECTION FILED DATED 15/1/1996 BY THE||| ||PETITIONER.||| |EXT.P3|TRUE COPY OF EXPLANATION DT.11/7/1994 GIVEN BY THE||| ||PETITIONER.||| |EXT.P4|TRUE COPY OF ORDER NO.A2/7122/96||DT.24/2/1996 ISSUED BY DEO| |EXT.P5|TRUE COPY OF NOTICE DATED 3/1/96||ISSUED BY DEO| |EXT.P6|TRUE COPY OF INTERIM ORDER DT.7.3.96 ISSUED BY THIS COURT.||| |EXT.P7|TRUE COPY OF INTERIM ORDER DT.10.4.96 ISSUED BY THIS COURT.||| |EXT.P8|TRUE COPY OF JUDGMENT DT.26/7/2005 ISSUED BY THIS COURT.||| |EXT.P9|TRUE COPY OF REVISION PETITION DT.22.8.05 GIVEN BY THE||| ||PETITIONER.||| |EXT.P10|TRUE COPY OF REPRESENTATION DT.29/3/2006 GIVEN BY THE||| ||PETITIONER.||| |EXT.P11|TRUE COPY OF GO RT NO.616/06/G.EDN., DT.7/2/2006 ISSUED BY||| ||THE UNDER SECRETARY TO GOVT. DEPT. OF GEN. EDN.||| |EXT.P12|TRUE COPY OF ORDER DT.25/11/1995||ISSUED BY THE DDE , KOLLAM.| |RESPONDENT'S EXTS<br>:NIL|||| ## **`ms`** ## **`\\True copy//`** ``` P.A to Judge ``` ## **`T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.21054/2006-F ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 9[th] day of April, 2012`** ``` J U D G M E N T ``` The petitioner who retired from service as Principal of a Higher Secondary School is aggrieved by the withholding of certain amounts from the Death-cum-Retirement Gratuity as liabilities. 2. He retired from service on 31/03/1995. The total amount withheld is Rs.32,485/-. The main objection is one found by the Audit party which reported excess detention of 4 pupils in Std.V during 1991-92. Ext.P1 is the said letter against which the petitioner filed objection as per Ext.P2. He mainly contended that he was not in the school at the relevant time. The District Educational Officer had overruled his objections as per Ext.P4 order and he fixed liability at Rs.18,228/- towards this item. The petitioner filed O.P.No.4027/1996 challenging the said order. This Court by Ext.P8 Judgment directed the petitioner to file a revision petition before the Government and, ultimately, the Government considered the matter and passed Ext.P11 order rejecting his claim. 3. There are three items of liabilities in Ext.P11. For irregular detention of 4 pupils, the amount shown is Rs.18,228/-, liability towards co-operative society is Rs.10,445/- and towards S.S.L.C Exam advance is ## **W.P.(C). No.21054/2006** ## **-:2:-** Rs.3,812/-. Learned counsel for the petitioner submitted that in respect of liability towards Co-operative Society and S.S.L.C. Exam advance, the objections have been cleared and what remains is only the liability with respect to irregular detention of 4 pupils. 4. It is contended that the detention occurred during the tenure of the previous headmaster and, therefore, the petitioner cannot be saddled with any liability. The petitioner was only a High School Assistant on 01/06/1992 and he was promoted as a Headmaster only in 1994. 5. The learned counsel for the petitioner further relied upon the Judgments of this Court in **Mary v. State of Kerala [1994 (2) KLT 853]** and **Manager, M.J.H. School v. Director of Public Instruction [1986 KLT SN Pg.12 Case No.22]** to contend that the fixation of liability itself cannot be supported. Both the decisions interpreted Rule 13 Chapter VIII of Kerala Education Rules. Mary's Judgment ( _supra_ ) is a similar case wherein legality of the liability fixed against the Headmaster was considered. 6. Herein, the proceedings Ext.P11 in para.6 notes the reason for fixing the liability against the petitioner. The Accountant General has audited the staff fixation files for 1992-93 of the school and the irregularity noted is the excess detention of 4 pupils in Std.V which resulted in securing one additional post of U.P.S.A. It is noted that Shri Seraphine then ## **W.P.(C). No.21054/2006** ## **-:3:-** Headmaster was responsible for the said irregularity and he retired from service. The petitioner, his successor, issued Non Liability Certificate to the retired Headmaster and asked to release the D.C.R.G even though he was aware of the liability. It is thus found that the action of the petitioner in having issued a N.L.C to a retired Headmaster without taking any action to recover the Government money is highly irregular and violative of existing rules. The question is whether the liability as fixed against Shri Serafine and passed over to the petitioner was justified. 7. In Mary's case **[1994 (2) KLT 853]** the scheme of promotion under Rule 13(3) of Chapter VIII of Kerala Education Rules and eligibility of a pupil for the same was examined. It was found that the question of promotion depends upon his performance. Therein, the Government Order, namely, G.O.(Ms).nO.81/88/G.Edn., dated 11/04/1988 which directed promotion of 80% of pupils to higher classes and its validity was also considered. It was held that the same cannot override Rule 13 of Chapter VIII of K.E.R. Going by Rule 13, promotion has to be made to the next higher standard on the basis of the pupils' performance as assessed by the periodical test and on the basis of the final examination. This Court in para.4 of the Judgment held that “since promotion or detention of pupils has to be based on evaluation of the performance, promotion of students in ## **W.P.(C). No.21054/2006** ## **-:4:-** excess of 80% cannot be made the basis of liability, either of the teacher of Headmistress. If it were otherwise, it would mean that the teacher and the Headmistress are held liable for the loss resulting from obedience of R.13. Such interpretation is opposed to the intention of R.3 of Chapter I of Part III of the Kerala Service Rules”. 8. Accordingly, this Court, in para.5 of the above Judgment was of the view that the fixation of the liability against the Headmaster was not correct. In fact, the facts of that case show that some of the students in Stds.V, VII and IX were detained, which resulted in the employment of four teachers and consequent payment of salary, and liability was fixed against the Headmaster. 9. The same principle will apply to the facts of this case also. When the promotion depends Rule 13 of Chapter VIII K.E.R, the liability itself fixed against the previous Headmaster could not survive in the light of the dictum laid down in above case. In **Manager, M.J.H. School's case [1986 KLT SN Pg.12 Case No.22]** also the interpretation of Rule 13 of Chapter VIII K.E.R arose. Therein also it was held that “when once students are declared passed or are detained after following the procedure in Rule 13 of Chapter VIII, it cannot be said that for the purpose of Rule 23 of ## **W.P.(C). No.21054/2006** ## **-:5:-** Chapter VI, the position could be ignored. The Act and the Rules have to be read and administered as a whole”. 10. The question of fixing any liability against the petitioner, therefore, does not arise. Apart from the same, what is alleged as against the petitioner is the issuance of N.L.C to the previous Headmaster. Therein also, the learned counsel for the petitioner submits that even though he has issued the institutional N.L.C, the previous Headmaster has drawn the D.C.R.G on production of the comprehensive N.L.C issued by the concerned Departmental Officer and, therefore, the liability cannot be saddled against the petitioner. I find force in the said submission. 11. As the detention of the students, therefore, will not result in any liability against the Headmaster, the fixation of liability itself, for an amount of Rs.18,228/- is illegal. 12. Hence, the writ petition is allowed. Exts.P4 and P11 are quashed. The learned counsel for the petitioner pressed for payment of reasonable interest for the delayed payment of D.C.R.G, of the withheld amount. It is stated that even though liability has been cleared in respect of the second item being Rs.10,455/-, the amount has not been released so far. ## **W.P.(C). No.21054/2006** ## **-:6:-** 13. Learned Government Pleader opposed the same pointing out that only because of the proceedings issued fixing the liability, the amounts were withheld. 14. When the fixation of liability itself is held as illegal, the petitioner is entitled for grant of reasonable interest. Herein, he retired from service in the year 1995, namely, on 31/03/1995. Therefore, I hold that the petitioner is entitled for grant of reasonable interest at 8% per annum on the withheld amount of Rs.18,228/- at least from the date of Ext.P4, namely, 24/02/1996, whereby it was fixed as a liability against him. The said amount of Rs.18,228/- and the amount of Rs.10,455/- (which according to the petitioner has been cleared as a liability) along with the interest at 8% on the amount Rs.18,228/- from the date of Ext.P4 will be disbursed to the petitioner within a period of three months from the date of receipt of a copy of this Judgment. No costs. ``` Sd/- ``` ``` (T.R. Ramachandran Nair, Judge.) ``` ## **`ms`**